HomeMy WebLinkAboutThe Market Co. Mgmt Agmt
The Market
Company, Inc.
Management and
Operation Agreement
for the
Espanola Way
Street Market
SECTION
1
2.
2.1
2.2
3.
3.1.1
3.1.2
3.1.2.1
3.1.3
3.1.4
3.1.5
3.1.6
3.2
3.2.1
3.2.2
3.2.3
3.2.4
3.3
3.4
3.5
3.6
3.6.1
3.6.2
3.7
3.8
3.9
3.10
4.
4.1
4.2
4.3
4.4
4.5
4.6
5.
6.
7.
7.1.1
7.2
8.
9.
9.1
9.2
10.
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
11.
INDEX
TITLE
PAGE
TERM...................................................................................................................................5
CONCESSION AREA.......................................................................................................... 5
Espanola Way......................................................................................................... 5
Drexel Avenue............................................................................................... ...;.....5
USE(S)................................................................................................. .:......................... ..... 6
Facilities Design...................................................................................................... 6
Placement of Facilities............................................................................................ 6
Compliance with American with Disabilities Act (ADA)........................................... 7
Set Up..... ................................................................................................................ 7
Public Right-of-Way................................................................................................ 8
Interaction and Coordination with Other Espanola Way Operations and Events ...8
Conflict Resolution........... ....................................................................................... 8
Permitted Concession Operations I Uses.............................................................1 0
Arts and Crafts...................................................................................................... 1 0
Cut Flowers and Plants.........................................................................................11
Fruits, Vegetables, Other Edible Products............................................................11
Live Entertainment...................................................................................... ..........11
Intentionally Omitted ................... ............................................................... ...........11
Intentionally Omitted .............................................................................................11
Intentionally Omitted.... ......................................................................................... 12
Off-Duty Police I Field Monitor..............................................................................12
Off-Duty Police..................................................................................................... .12
Field Monitor............ .......................... ............. ......................................................12
Vendor Selection I First Priority to Miami Beach Merchants................................. 12
Removal of Concession Facilities.........................................................................13
Hurricane Evacuation Plan ...................................................................................13
City Occupational Licenses ..................................................................................13
CONCESSION FEES.................... .................................................................................... 14
Security Deposit.................................................................................................... 14
Percentage of Gross (vs.) MG (PG) .....................................................................14
Minimum Guarantee (MG) ....................................................................................15
Cost for Use of Electricity .....................................................................................15
Interest for Late Payment .....................................................................................15
Sales and Use Tax............................................................................................... 15
MAINTENANCE AND EXAMINATION OF RECORDS.....................................................15
INSPECTION AND AUDIT ................................................................................................16
TAXES, ASSESSMENTS, AND UTILITIES ......................................................................17
Electricity............................................................................................................... 17
Procedure if Ad Valorem Taxes Assessed........................................................... 17
EMPLOYEES AND INDEPENDENT CONTRACTORS ....................................................17
SCHEDULE OF OPERATION ............................................................................ .... ...........18
Day(s) of Operation .................... .... ........................................................... .... .......18
Operating Hours................................................................................................... 18
MAINTENANCE....... .......................................................................................................... 18
Garbage Receptacles ... ........ ... ........ ...... ....... .... .... ....... ........... ........ ............ ..........19
Pressure Cleaning...... ................................................................................... .......19
Facilities................................................................................................................ 19
Orderly Operation................................................................................................. 19
No Dangerous Materials................................................................................ .......19
Security............................. ................................................................................... .20
Vehicles on Public Right-of-Way ..........................................................................20
Inspection .............. ............................................................................................. ..21
INSURANCE..................................................................................................................... .21
2
SECTION
TITLE
PAGE
12. INDEMNITY...................................................................................................................... .22
12.4 Subrogation............................................................ ........................................... ...23
12.5 Force Majeure..................................................................................................... ..23
12.6 Labor Dispute ...................................................................................................... .23
12.7 Waiver of Loss from Hazards ...............................................................................23
13 DEFAULT AND TERMINATION ............................................................................ ............23
13.1 Bankruptcy............................................ ............................................................... .24
13.2 Default in Payment ................................................................................... ............24
13.3 Non-Monetary Default............................,............................................................. .24
13.4 City's Remedies for Concessionaire's DefauIL...................................................24
13.6 Termination for Convenience/Partial Termination ................................................25
13.7 Surrender of Concession Area .............................................................................26
14. PERFORMANCE BOND OR ALTERNATE SECURITY ...................................................26
15. ASSIGNMENT.... ........... ..................... .............................................................................. .27
16. SPECIAL EVENTS........................................................................................................... .27
16.2 City Special Events............................................................................................. ..28
16.4 Street Vendors / Street Performers ......................................................................28
17. NO IMPROPER USE..................................................................................................... ....29
18. PRICE SCHEDULES....................................................................................................... ..29
19. NOTiCES............ ............................................................................................................. ..29
20. LAWS......................................................................... .......................................................30
20.1 Compliance........................................................................................................... 30
20.2 . Governing Law....................... ............................................................................... 30
20.3 Equal Employment Opportunity ............................................................................30
20.4 No Discrimination.................................................................................................. 30
21. MiSCELLANEOUS........... ................................. ................................................................ 31
21.1 No Partnership...................................................................................................... 31
21.2 Modifications.......................... ............... ........................................................ ........ 31
21.3 Complete Agreement..................................................................................... ..... ..31
21.4 Headings........................................ ................................................................. ...... 31
21 .5 Binding Effect........................................................................................................ 31
21.6 Clauses.......................................,... .................. .................................................... 31
21.7 Severability.................................. ..................................................... ............ ........31
21.8 Right of Entry .................................................................. ........ .............................,32
21.9 Not a Lease .............. ........ .................. ... ... .... ............. ...... ...... ............... ..... ... ..... ... 32
21.10 Signage............................................................ ....... ..............................................32
21.11 Use of the Right-of-Way ......................................................................................32
21.12 Conflict of Interest.................................................................................................32
21.13 Reasonableness................. ... ................ ........... ....... .... ........................... ........ ......32
21.14 Procedure for Approvals and/or Consents ...........................................................33
21.15 No Waiver........ ........... ............ ............ .... ................. .................................. ...... .....33
21.16 No Third Party Beneficiary ....................................................................................33
21.17 Attorneys' Fees..................................................................................................... 33
22. LIMITATION OF L1ABI L1TY ............................................................................................... 33
23. VENUE............................................:.......................................................... ........... .......... ..33
EXHIBITS
Exhibit 2.0 ................... ........... ............................................ ........................... ..... ..35
Exhibit 3.1 ...................................................... ..................................................... .37
Exhibit 3.1.1 .........................................................................................................38
Exhibit 3.1.2.1 ....................... ...............................................................................39
Exhibit 3.2.1 ....................................................................................................... ..41
Exhibit A . ............................................................................................................ ..42
3
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
THE MARKET COMPANY, INC.
FOR MANAGEMENT AND OPERATION OF THE
ESPANOLA WAY STREET MARKET
PURSUANT TO REQUEST FOR PROPOSALS NO. 67-01/02
THIS AGREEMENT made the 1 yth day of March ,2004, between the CITY OF MIAMI
BEACH, a municipal corporation of the State of Florida (hereinafter called "City"), having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and THE
MARKET COMPANY, INC., a corporation established pursuant to the laws of the State of
Florida, with offices at428 Espanola Way, Miami Beach, Florida 33139 (hereinafter called
"Concessionaire").
WITNESSETH
WHEREAS, on July 31, 2002, the Mayor and City Commission adopted Resolution No.
2002-24947, authorizing the Administration to issue a Request for Proposals (RFP) for the
management and operation of street markets at various locations within the City; and
WHEREAS, on August 20, 2003, said RFP was issued, responses were received and
evaluated, and recommendations were forwarded to the Mayor and City Commission; and
WHEREAS, on March 19,2003, the Mayor and City Commission adopted Resolution No.
2003-25154, authorizing the Administration to enter into negotiations, via three (3) separate
concession agreements, with The Market Company, Inc. (Concessionaire) for the operation
and management of street markets on 1) Lincoln Road, 2) Espanola Way and 3)
Normandy Village; and
WHEREAS, the Administration has successfully negotiated the foregoing Concession
Agreement with The Market Company, Inc., for the operation and management of the
Espanola Way Street Market, on a portion of the public right-of-way known as Espanola
Way (between Washington Avenue and Drexel Avenue), and on a portion of the public
right-of-way known as Drexel Avenue (from Espanola Way southward through and
including the cul-de-sac) (collectively the "Concession Area"); said Agreement commencing
on April 1 , 2004, and expiring on March 31, 2005, with an option to renew, at the City's sole
discretion, for an additional one (1) year term.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within the
Concession Area, as defined herein, in conformance with the purposes and for the period
stated herein, and subject to all the terms and conditions herein contained and fairly
implied by the terms hereinafter set forth.
4
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of one (1) year, commencing on
April 1 ,2004 (the "Commencement Date"), and ending on March 31,2005.
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, commencing upon written notice from
Concessionaire to the City, which notice shall be given no later than 90 days
prior to the expiration of the initial term of the Agreement, the City may
extend the term of this Agreement for an additional one (1) year period,
commencing on April 1 , 2004, and ending on March 31, 2005.
SECTION 2. CONCESSION AREA.
The City hereby grants to the Concessionaire the exclusive right, during the Term of this
Agreement, to operate a concession for an open air street market, as described herein, in
the following area(s) (hereinafter referred to collectively as the "Concession Area"), as
more specifically delineated in Exhibit 2.0 herein:
2.1 Area 1. Espanola Wav.
This Concession Area is limited to the public right-of-way bounded on the
south by a line which lies no less than 5'0" north of, and parallel to the
property line of the privately owned property abutting the southernmost edge
of the sidewalk adjacent to the south edge of Espanola Way (keeping , at
minimum, a clear unobstructed 5'0" clear path of travel for pedestrians
between the private property and the Concession Area); bounded on the
north by a line which lies no less than 5'0" south of, and parallel to the
property line of the privately owned property abutting the northernmost edge
of the sidewalk adjacent to the north edge of Espanola Way (keeping , at
minimum, a clear unobstructed 5'0" clear path of travel for pedestrians
between the private property and the Concession Area); bounded on the
west by the easternmost line of Drexel Avenue; and bounded on the east by
the westernmost edge of the sidewalk/crosswalk adjacent to Washington
Avenue. The Concession Area does not include those portions of the public
right-of-way where fountains, seating, or other public amenities or other uses
authorized/licensed/permitted by the City are currently located or may be
located in the future.
2.2 Area 2. Drexel Avenue.
This Concession Area is limited to the public right-of-way bounded on the
south by the northernmost edge of the sidewalk adjacent to the Drexel
Avenue cul-de-sac; bounded on the north by the southernmost edge of the
sidewalk/crosswalk adjacent to Espanola Way; bounded on the west by the
easternmost edge of the sidewalk adjacent to Drexel Avenue; and bounded
on the east by the westernmost edge of the sidewalk adjacent to Drexel
Avenue. The Concession Area does not include those portions of the public
right-of-way where fountains, seating, or other public amenities or other uses
authorized/licensed/permitted by the City are currently located or may be
located in the future.
5
2.3 Notwithstanding the use of the Concession Area granted to Concessionaire
above, Concessionaire herein understands, agrees, and acknowledges that
the Concession Area, along with any and all other public right-of-way area(s)
not specifically identified herein, are public and, as such, must remain
available for the use and enjoyment of the general public whether or not the
public chooses to purchase any of Concessionaire's goods, or otherwise
partake of any of the services it provides. In the event that a member of the
public is within a particular area of the Concession Area, Concessionaire
agrees to allow for his/her continued peaceful enjoyment of said area.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of business(es)
within the Concession Area, as provided below, all at its sole cost and expense:
3.1 Concessionaire shall operate and manage an open air street market,
commonly known and referred to herein as the "Espanola Way Street
Market" (the Market), which shall provide a venue for vendors to sell and/or
provide the following (as each is more specifically defined in Section 3.2):
a) Arts and Crafts Merchandise;
b) Plants and Cut Flowers;
c) Fruits, vegetables, and other edible products and related food
items; and
d) Live Entertainment
This shall also generally include the rental of booths, tents, tables, signs or
space(s) (collectively the "facilities"), in conformance with the attached site
plan (Exhibit 2.0). The City herein approves the rental of the aforestated
facilities, and the prices for same, all as set forth in Exhibit 3.1, and as
provided in Section 18. Any amendments to Exhibit 3.1 must be approved in
writing by the City Manager or his designee and, prior to implementation of
same, a new Exhibit 3.1 shall be incorporated herein.
3.1.1 Facilities Desion:
The design, type, material, and color of any and all facilities, as
defined above, shall be approved in writing by the City's Planning
Department prior to the Commencement Date of this Agreement. A
photo or photo(s) of City-approved facilities is incorporated herein as
Exhibit 3.1.1. Thereafter, Concessionaire shall not change, alter, or
modify said City-approved design, type, material and color of any
facilities without the prior written consent of the City Manager or his
designee, and, if so approved, an updated Exhibit 3.1.1 will be made
a part of and incorporated into this Agreement.
3.1.2 Placement of Facilities:
All respective facilities within the Concession Area shall be placed
substantially in accordance with the attached site plans for Area 1 and
Area 2 respectively, herein approved by the City and attached hereto
and incorporated as Exhibit 2.0 herein. Concessionaire shall not
6
deviate from or alter the approved site plans without the prior written
consent of the City Manager or his designee.
3.1.2.1
3.1.2.2
3.1.2.3
Compliance with American with Disabilities Act (ADA) and
any other applicable accessibilitv standards:
Concessionaire agrees and acknowledges that during all
periods when its Market is in operation, including set-up
and break-down periods, it shall comply with ADA
standards, Florida Accessibility Code standards, and any
other applicable accessibility standards required by law,
including the provisions of the City's "Special Events
Disability Access Punch List", attached hereto and
incorporated as Exhibit 3.1.2.1 herein. Concessionaire's
compliance with the provisions set forth in the attached
Exhibit 3.1.2.1 , includes, but shall not be limited to, any and
all responsibilities associated with "Event Producer" as
described therein.
The Concessionaire's responsibility to comply with the
aforementioned provisions in Subsection 3.1.2.1 include,
but are not limited to, ensuring that there is an accessible
path of travel from the handicap designated parking spaces
and public transportation stops within the boundary of,
areas associated with, and entrances to, Espanola Way
and Drexel Avenue. Concessionaire shall:
a) maintain accessible path(s) of travel that permit the
unobstructed access to the entryways of all
buildings, facilities, elements and spaces along
Espanola Way and Drexel Avenue,
b) maintain an unobstructed accessible path of travel
on both the north sidewalk and the south sidewalk of
Espanola Way, and
c) maintain an unobstructed accessible path(s) of
travel from the north walkway to the south walkway
of Espanola Way.
Notwithstanding the above, Concessionaire's responsibility
to comply with the requirements of this Section 3.1.2.1 and
Section 3.1.2.2 shall be limited to those areas within the
Concession Area as provided in Section 2.0 herein.
3.1.3 Set Up:
The set up of facilities to be placed within the Concession Area,
substantially in accordance with the site plan(s) approved pursuantto
Exhibit 2.0, shall be in accordance with the hours of operation in
Section 9. Placement of vendor facilities shall be in accordance with
7
and shall not exceed the maximum numbers, for Area 1 and Area 2
respectively, set forth in Exhibit 2.0, attached hereto and incorporated
herein.
3.1.4 Public Riqht-of-Wav:
The City and Concessionaire agree and acknowledge that the public's
use of the public right-of way is a prime consideration and must be
balanced accordingly with Concessionaire's proposed operations, as
set forth herein. Accordingly, notwithstanding the site plans and
maximum numbers (as provided for in the Set Up period) set forth in
Subsection 3.1.3, Concessionaire further agrees that, notwithstanding
its right to set up its maximum numbers, it will not alter or modify its
site plans without the prior written consent of the City Manager or his
designee.
Notwithstanding the preceding paragraph, City and Concessionaire
may, from time to time, meet to review and, subject to City's prior
written consent, revise the maximum numbers (as provided for in the
Set-Up period) set forth in Subsection 3.1.3.
3.1.5 Interaction and Coordination with Other Espanola Way Operations
and Events:
Concessionaire agrees and understands that there are other
businesses, establishments, operations and events which are
ongoing, or may occur from time to time within or in close proximity to,
the Concession Area. As such, Concessionaire agrees that it will use
its best efforts to cooperate and coordinate with said businesses,
establishments, operations and events so as to minimize the impact
to the respective parties.
3.1.6 Conflict Resolution:
Concessionaire recognizes and understands that conflicts with one or
more of the following entities, groups, and/or individuals may arise
during the term of this Agreement, or any extensions thereof:
· Conflicts between Espanola Way (or other)
Merchants/Businesses and Concessionaire
· Conflicts between Vendors and Concessionaire
· Conflicts between Vendors and the General Public
· Conflicts between General Public and Concessionaire
As such, Concessionaire further recognizes and understands that
notice of said conflicts may be directed to the attention of
Concessionaire or the City. In the event a notice of conflict is
communicated to the City, the City will communicate same to the
Concessionaire, as soon as practicable.
Whenever a conflict arises, upon Concessionaire's receipt of notice of
same, whether written or verbal, between any of the aforestated
8
entities, groups, or individuals, with any of Concessionaire's
operations, resolution to said conflicts will be addressed in the
following manner:
1. Concessionaire shall meet with the conflicted party and
endeavor, using its best efforts and good faith, to resolve the
conflict to the satisfaction of all parties concerned within
fourteen (14) calendar days from receipt of notice.
2. In the event the conflict cannot be resolved as stated in
Number 1 above, then the Concessionaire shall provide written
notice to the conflicted party, (with copy to the City Manager's
designee) with a date on which to meet with the City
Manager's designee, to address the conflict. At that time, the
City Manager's designee will recommend a resolution. The City
Manager's designee shall endeavor to set a meeting date
within fourteen (14) calendar days of receipt of a copy of the
written notice to the conflicted party. For purposes of this
Section, the City Manager's designee shall be the Asset
Manager of the City.
3. In the event the resolution recommended by the City
Manager's designee is not acceptable to the Concessionaire or
the conflicted party, the City Manager's designee shall inform
the City Manager, and provide him with the pertinent details of
the conflict. The City Manager may make a determination as
to whether he concurs with the designee's recommendation;
offer an alternate resolution; or choose to meet with
Concessionaire and the conflicted party to get additional
information prior to making a final determination.
Notwithstanding the foregoing, the City Manager's final determination,
will be binding upon Concessionaire, and Concessionaire shall agree
to be bound by same.
Concessionaire agrees and understands that the above referenced
conflict resolution language is not applicable to any conflicts that may
arise between the City and the Concessionaire pursuant to this
Agreement, or conflicts outside of the City's purview, control or
jurisdiction.
3.1.7 The condition and quality of Concessionaire's facilities shall at all
times be maintained in a manner that is consistent with the condition
and quality of similar facilities in first class open air markets located in
other world class areas. It is the City's intent, and Concessionaire
hereby agrees and acknowledges same, to develop and promote
world class open air street market facilities and operations that would
be comparable to those found in other world class public areas.
Accordingly, Concessionaire shall not only, at a minimum, ensure that
9
3.1.8
3.1.9
3.1.10
all facilities placed within the Concession Area are well maintained
and in usable condition, but shall adhere, as indicated in this
Subsection, to high ongoing maintenance standards for same
consistent with the aforementioned condition and quality.
Quality of goods and services offered will be first-rate and comparable
to that available in open air markets in other world class areas on par
with the City of Miami Beach or, at a minimum, to the quality and
pricing of goods and services provided by privately owned businesses
selling like goods and services within the City of Miami Beach.
In addition to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 hereof, all portions of
the Concession Area shall at all times be maintained in a clean and
sanitary manner.
The concession operations shall be offered to patrons at all times
during the days and hours of operation set forth in Section 9 herein.
However, if the City, at its sole discretion, deems that there is a
decrease in demand for the concession operations, or if the
Concessionaire provides the City with written notice that it is desirous
of reducing its hours of operation, (i) the City shall provide
Concessionaire with a minimum of two (2) weeks prior written notice,
requesting the specific decrease in Concessionaire's operation, or (ii)
Concessionaire shall provide the City with, at minimum, two weeks
prior written notice, requesting to reduce said hours, for the City's
written approval (which shall not be unreasonably withheld) prior to
implementing said schedule of reduced hours of operation. Said
notice to the City shall include the newly proposed schedule of
operation. In the event the City requests that Concessionaire
decrease its operations pursuant to this Subsection, then the partial
termination provisions of Subsection 13.6.3 shall apply.
Similarly, if Concessionaire is desirous of increasing its hours of
operation in the Concession Area then, in that event, the
Concessionaire shall obtain the City's prior written consent.
Concessionaire agrees and acknowledges that any Concessionaire
requested reduction in the scheduled hours of operation as may be
provided herein shall not in any way reduce Concessionaire's financial
responsibility to the City, as required in Section 4, except if same is
deemed by the City to be a partial termination pursuant to Subsection
13.6.3.
3.2 Permitted Concession Operations / Uses.
3.2.1 Arts and Crafts:
This shall generally include the sale of those goods and items
identified in Exhibit 3.2.1, substantially in accordance with the price
10
ranges set forth therein. Any amendments to Exhibit 3.2.1, whether as
to changes and/or additions of goods and items to be offered for sale,
or in the respective price ranges for same, must be approved in
writing by the City Manager or his designee, prior to such changes
and/or additions being implemented and a new updated Exhibit 3.2.1
will be incorporated into this Agreement.
3.2.2 Cut Flowers and Plants:
This shall generally include the sale of flowers, either individually or in
bunches that have been cut from their base, and potted plants.
3.2.3 Fruits, Veqetables. Other Edible Products:
This shall generally include the sale of those edible items defined as,
and generally including, fresh fruits, dried fruits, vegetables, nuts,
preserves, pickled items, jams, jellies, juices, smoothies, and other
non-alcoholic beverages.
3.2.4 Live Entertainment:
3.2.4.1
Any live entertainment that is provided by Concessionaire
shall be limited to: solo, duo and/or trio performers, unless
otherwise approved, in writing, by the City Manager or his
designee.
3.2.4.2
For purposes of this Agreement, the term "performers" shall
include individuals who provide live entertainment by
means of musical instruments, singing, dancing, theatrical
and dramatic interpretation, mimes, etc. Notwithstanding,
the foregoing, Concessionaire must comply with City and
Miami-Dade County Noise Ordinance(s), and any other
applicable regulation, at all times.
3.2.5 In the event that the City Manager or his designee determines, at his
sole option and discretion, that all or a portion of Concessionaire's
proposed uses, pursuant to Subsection 3.1 and as defined in Section
3.2, are no longer desired, then the City may revoke Concessionaire's
right to provide all or a portion of said uses, without cause, upon thirty
(30) days written notice to Concessionaire. Any percentage of gross
paid by Concessionaire (pursuant to Subsections 4.2 and 4.3) to City
with regard to a delete/discontinued use, shall be prorated and/or
adjusted accordingly as of the date of termination of said use, and no
further payment shall be required for same during the term of this
Agreement, unless the City reinstates the use, at which. time the
payment provisions of Subsections 4.2 and 4.3 shall once again
apply.
3.3 Intentionally Omitted.
3.4 Intentionally Omitted.
11
3.5 Intentionally Omitted.
3.6 Off-Duty Police / Field Monitor.
3.6.1 Off-Duty Police:
Concessionaire agrees that an Off-Duty Police Officer is required and
shall be present daily on Friday, Saturday and Sunday evenings
during closing/move-out times. Concessionaire shall be responsible
for coordinating, scheduling, and hiring said Off-Duty Police Officer,
as well as, for all costs and expenses related thereto. In the event
either party requests any changes to this Section 3.6.1, as same may
be warranted by changes in Market conditions or operations, the
parties herein agree to meet and discuss said proposed changes.
3.6.2 Field Monitor:
Additionally, Concessionaire agrees and understands that a Field
Monitor, who will report to and be under the direction of the City, is
required for a minimum of two (2) hours daily on Saturday and
Sunday mornings in order to assist and facilitate during set-up times.
Concessionaire further agrees and understands that any and all costs
associated with said Field Monitor shall be borne by Concessionaire
and reimbursed to the City on a monthly basis, along with its regularly
scheduled monthly payments pursuant to Section 4.2 herein.
Concessionaire's responsibility for the costs associated with said Field
Monitor position for the initial term shall be limited to Seventeen
($17.00) Dollars per hour. During the renewal term, said limit shall be
increased by 3% per contract year or by the annual Consumer Price
Index, All Urban Consumers, as reported by the U.S. Bureau of Labor
Statistics (CPI), whichever is greater.
3.6.3 Concessionaire supervisory/management employee shall be on duty
and on-site within the Concession Area, or available via telephone, at
all times during which the Market is operating, including but not limited
to Set-Up and Move-Out periods, as defined in Subsection 9.2 herein.
3.7 Vendor Selection / First Priority to Miami Beach Merchants.
3.7.1 Within thirty (30) days from the Commencement Date of this
Concession Agreement, and for a period of thirty (30) days thereafter,
the Concessionaire shall offer Miami Beach licensed merchants the
opportunity to participate (a booth space in the Market) as vendors
before opening its search to the general public or other networks. The
Concessionaire will establish this "pool" and will also serve as the
clearinghouse for booth availability and vendor applicants. The
Concessionaire shall commit to use this clearinghouse during the
initial availability of booth space before expanding its search to other
networks.
The Concessionaire will use best efforts to ensure that all Miami
12
Beach licensed merchants are contacted and that announcements
regarding booth availability are disseminated throughout the City of
Miami Beach, as quickly as possible so as to take optimum advantage
of the thirty (30) day availability period, including but not limited to,
advertising in a local newspaper, placing information on the Market or
other websites, or other similar efforts.
The Concessionaire will make itself available to answer any questions
potential applicants may have about the Market.
3.7.2 Notwithstanding the foregoing, and for purposes ofthis Section 3.7, in
the event that the number of responsive Miami Beach licensed
merchants desirous of participating in the Market would cause
Concessionaire to displace any vendors who have been and are
currently and actively participating in the Market as of the date of
execution of this Agreement, and such displacement is directly due to
lack of available space within the Concession Area, then in such
event Concessionaire and the City agree to meet and discuss, in
good faith, and make reasonable efforts to resolve this matter. It is
understood by the parties herein, that the intent of this Subsection 3.7
is not to displace vendors who are currently and actively participating
in the Market but to provide opportunities for those Miami Beach
licensed merchants who desire to participate in the Market.
3.7.3 The Concessionaire will keep and make available to the City for
inspection, upon notice by the City, carefully detailed records,
including the name, address, telephone numbers, qualifications,
experience, and the proposed goods and services to be offered for
sale by its vendors, and will pay particular attention to matching
vendors and booths with appropriate locations.
3.8 Removal of Concession Facilities.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall be done on a daily basis, in
compliance with the time parameter(s) set forth in Subsection 9.2 herein.
3.9 Hurricane Evacuation Plan.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall immediately begin no later than
upon the issuance of a Hurricane Warning by the Miami-Dade County Office
of Emergency Management, and stored at a private, off-site location.
3.10 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any occupational
licenses required by City law, as amended from time to time, for its proposed
operations, as contemplated in Section 3 of this Agreement. For purposes of
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this Agreement, Concessionaire shall obtain the applicable "Promoters"
category City occupational license.
SECTION 4. CONCESSION FEES.
4.1 Security Deposit.
Upon execution of this Agreement Concessionaire shall furnish the City with
a Security Deposit, in the amount of One Thousand Four Hundred ($1,400)
Dollars (approximately equal to one month's rent based on the Market's prior
year's actual revenues). Said Security Deposit shall serve to secure
Concessionaire's performance in accordance with the provisions of this
Agreement. In the event the Concessionaire fails to perform in accordance
with said provisions, the City may retain said Security Deposit, as well as
pursue any and all other legal remedies provided herein, or as may be
provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended
to be a condition subsequent to the City's approval of this Agreement.
Accordingly, in the event that Concessionaire does not satisfy the
aforestated condition within the time periods provided herein, then the City
Manager or his designee may immediately, without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which
may be available to him for breach of contract.
4.2 PercentaQe of Gross (vs.) MG (PG).
During the initial term, and any renewal term, of the Agreement,
Concessionaire shall pay the City, on a monthly basis, and within thirty (30)
calendar days from the end of each month during the term herein, an amount
equal to fifteen (15%) percent of Concessionaire's gross receipts (PG). In the
event that the annual PG is less than the amount provided in Subsection 4.3
below, then the Concessionaire shall also pay to the City, on an annual
basis, the difference between the PG amount and the amount provided in
Subsection 4.3 below, no later than 30 days after the expiration of the initial
term, or of the renewal term of this Agreement, as the case may be.
Notwithstanding the above, in the event Concessionaire's annual gross
receipts exceed 110% of its prior year gross receipts, Concessionaire shall
pay to the City an additional amount equal to 2.5% of those gross receipts
that exceed 100%, through and including those gross receipts that equal
120% of its prior year's gross receipts; and
In the event Concessionaire's annual gross receipts exceed 120% of its prior
year gross receipts, Concessionaire shall also pay to the City an additional
amount equal to 5% of those gross receipts that exceed 120% of its prior
year's gross receipts.
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by the Concessionaire under the privileges
granted by this Agreement, excluding amounts of any Federal, State, or City
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sales tax, or other tax, governmental imposition, assessment, charge or
expense of any kind, collected by the Concessionaire from customers and
required by law to be remitted to the taxing or other governmental authority.
Except as otherwise provided, with regard to a special event under
Subsection 16.1 hereof in which Concessionaire is not permitted to continue
operating, the pro-rata share due to the City for the event days will be
abated.
4.3 Minimum Guarantee (MG).
Notwithstanding the PG payment required pursuant to Subsection 4.2, and in
consideration of the City executing this Agreement and granting the rights
provided in this Agreement, Concessionaire shall pay to the City a Minimum
Guaranteed Annual Concession Fee (MG) of Twelve Thousand Three
Hundred Dollars ($12,300) for the initial term. Said initial MG is based on a
percentage (approximately 75%) of the Calendar Year 2003 revenues
received by the City of Miami Beach, from The Market Company, Inc.,
pursuant to the Market Company's Special Event permit for the Espanola
Way Market for the respective time period, and shall be paid annually in
accordance with Sections 4.2 and 4.3, as applicable.
In the event that the City, at its sole discretion, chooses to extend the term of
this Agreement for the additional one (1) year renewal term, the renewal term
year MG shall be automatically increased, by five percent (5%) from the
previous year's MG, or seventy five (75%) percent of the prior year revenues
remitted to the City, whichever is greater, and shall be due and payable to
the City, in accordance with Sections 4.2 and 4.3, as applicable.
4.4 Cost for Use of Electricitv.
Concessionaire shall also remit to the City, along with its monthly payments
required under Section 4.2, an amount equal to two dollars ($2.00) per
Market day, plus applicable sales and use tax, for each vendor location that
proposes to use electricity.
4.5 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not
paid on or before the respective date provided for in this Agreement shall be
subject to interest at the rate of twelve percent (12%) per annum, from the
due date of payment until such time as payment is actually received by the
City.
4.6 Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales and
Use Tax shall be added to Concessionaire's payments and forwarded to the
City as part of said payments. It is the City's intent that it is to receive all
payments due from Concessionaire as net of such Florida State Sales and
Use Tax:
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an
15
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements and such records shall be maintained as would
be required by an independent CPA in order to audit a statement of annual gross receipts
. and profit and loss statement pursuant to generally accepted accounting principles.
A monthly report of gross receipts must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the
close of each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of the initial term, or (if approved) the renewal term,
and such records shall be open and available to the City Manager or his designee, as
deemed necessary by the City Manager or his designee. Concessionaire shall maintain all
such records at its principal office, currently located at 428 Espanola Way, Miami Beach,
Florida, 33139 or, if moved to another location, all such records shall be relocated, at
Concessionaire's expense, to a location within the City of Miami Beach, within ten (10)
days' written notice from the City that the City desires to review said records.
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operation as often as it deems reasonably necessary throughout the term
of this Agreement, and three (3) times within the three (3) year period following termination
of the Agreement, regardless of whether such termination results from the natural
expiration of the term or for any other reason. The City shall be responsible for paying all
costs associated with such audits, unless the audit(s) reveals a deficiency of five percent
(5%) or more in Concessionaire's statement of gross receipts for any year or years audited,
in which case the firm shall pay to the City, within thirty (30) days of the audit being
deemed final (as specified below), the cost of the audit and a sum equal to the amount of
the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be
deemed final until Concessionaire has received the audit and has had a reasonable
opportunity to review the audit and discuss the audit with the City. Nothing contained within
this Section shall preclude the City's audit rights for resort tax collection purposes.
Concessionaire shall submit at the end of the initial term (and, if approved, the renewal
term), an audited annual statement of gross receipts, in a form consistent with generally
accepted accounting principles.
It is Concessionaire's intent to stay informed of comments and sugge~tions by the City
regarding Concessionaire's performance under the Agreement. Within thirty (30) days after
the end of the initial term (and, if approved, the renewal term), Concessionaire and City
may meet to review Concessionaire's performance under the Agreement. At the meeting,
Concessionaire and City may discuss quality, operational, maintenance and any other
issues regarding Concessionaire's performance under the Agreement.
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SECTION 7. TAXES. ASSESSMENTS, AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities and operations of Concessionaire
upon or in connection with the Concession Area. Concessionaire will have
the right, at its own expense, to contest the amount or validity, in whole or in
part, of any tax and/or assessment by appropriate proceedings diligently
conducted in good faith. Concessionaire may refrain from paying a tax or
assessment to the extent it is contesting the assessment or imposition of
same in a mannerthat is in accordance with law; provided, however, if, as a
result of such contest, additional delinquency charges become due,
Concessionaire shall be responsible for such delinquency charges, in
addition to payment of the contested tax and/or assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business, activities, or operations of Concessionaire upon the
Concession Area.
Concessionaire shall pay before delinquency any and all charges for utilities
used by, for, or on behalf of the operations contemplated herein (including,
but not limited to, water, electricity, gas, heating, cooling, sewer, telephone,
trash collection, etc.).
7.1.1 Electricitv:
City acknowledges that Concessionaire may require electrical outlets
to operate some vendor locations for registers, lighting fixtures, etc.
Any usage of electricity from City-owned sources, shall be reimbursed
to the City in accordance with the provisions outlined in Section 4.4
herein. Concessionaire agrees to remit to the City, on a monthly
basis, along with the payment of rent, a list of all vendors which use
electricity.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the concession
operations contemplated herein are for public purposes and, therefore, no ad
valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser. If, however, said taxes are assessed, City and Concessionaire
shall use reasonable efforts to address payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees and/or independent contractors,
who will be employees and/or independent contractors of Concessionaire
and not employees or agents of the City. Additionally, Concessionaire's
vendors shall not be considered agents or employees of the City.
Concessionaire shall select the number, function, qualifications,
compensation, including benefits (if any), and may, at its discretion and at
17
any time, adjust or revise the terms and conditions relating to its employees
and/or independent contractors.
8.2 Concessionaire shall ensure that all its employees and/or independent
contractors observe all the graces of personal grooming. The Concessionaire
shall hire people to work in its concession operation who are neat, clean, well
groomed and shall comport themselves in a professional and courteous
manner, and ensure that its vendors and/or independent contractors comply
with same. The Concessionaire and any persons hired by same, shall never
have been convicted of a felony. If Concessionaire materially fails to comply
with this provision the City may default Concessionaire pursuant to Section
13 herein.
8.3 The Concessionaire shall have an experienced manager or managers
overseeing the concession operations at all times.
SECTION 9. SCHEDULE OF OPERATION.
Concessionaire's operations shall be open on the Concession Area, in accordance with the
schedule outlined below, weather or events of force majeure permitting.
9.1
Day(s) of Operation:
Fridays, Saturdays and Sundays only
9.2 Operatinq Hours:
Friday:
Set-Up:
Market Hours:
Move-Out:
Saturday:
Set-Up:
Market Hours:
Move-Out:
Sunday:
Set-Up:
Market Hours:
Move-Out:
5:00 PM to 7:00 PM
7:00 PM to 12:00 AM
12:00AMto 1:00AM
8:00 AM to 10:00 AM
10:00 AM to 12:00 AM
12:00 AM to 1 :00 AM
9:00 AM to 11 :00 AM
11 :00 AM to 9:00 PM
9:00 PM to 10:00 PM
Any change in the days or hours of operation require the prior written consent of the City
Manager including, but not limited to, change in the days and hours of operation requested
pursuant to Subsection 3.1.10.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the'use of the Concession Area provided in this
Agreement in its "as is" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the Concession Area and its
facilities therein. This shall include daily removal of litter, garbage and debris,
said removal to be the sole responsibility and expense of Concessionaire.
Daily maintenance shall be accomplished on all days and hours
Concessionaire operates. Concessionaire agrees, also at its sole cost and
18
expense, to pay for all garbage disposal generated by its operations.
10.2 Garbaqe Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area and shall provide a sufficient number of these receptacles
for its own use and for the use of the public that patronizes the Market.
Disposal of the contents of said receptacles and removal of litter, garbage
and debris within the Concession Area, shall be accomplished by the end of
the day on all days on which the Concessionaire operates, and shall be the
sole responsibility of the Concessionaire. Any costs for removal of the
contents of said trash receptacles by the City, because of the
Concessionaire's failure to do the same, will be charged to, and become the
responsibility of, the Concessionaire. The dumping or disposal of any refuse,
discards, trash or garbage, generated by, or as a result of the concession
operations, into any City trash receptacles by the Concessionaire (including
its staff, employees and/or vendors) shall be strictly prohibited. Determination
of the "number" of receptacles shall at all times be within the City's sole
discretion, and Concessionaire shall agree to be bound by same.
10.3 Pressure Cleaninq.
Concessionaire shall be responsible, at its sole cost and expense, for the
pressure cleaning of the Concession Area, including all abutting sidewalks
and public right-of-way adjacent thereto, at least once every three (3)
months, or on an as needed basis, as deemed by the City, in its sole
discretion.
10.4 Facilities.
Intentionally Omitted.
10.5 Orderlv Operation.
The Concessionaire shall have a neat and orderly operation at all times and
shall be solely responsible for the necessary housekeeping services to
properly maintain the Concession Area and all facilities incident thereto. The
Concessionaire shall make available all operations and facilities within the
Concession Area (including but not limited to vendor facilities) for
examination during days and hours of operation by the City Manager or his
authorized representative.
10.6 No Danqerous Materials.
10.6.1 The Concessionaire agrees not to use or permit in the Concession
Area and/or facilities the storage and/or use of gasoline, fuel oils,
diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives
of any kind, or any substance or thing prohibited in the standard
policies of fire insurance companies in the State of Florida. Any such
substances or materials found within the Concession Area and/or
19
facilities shall be immediately removed.
10.6.2 Notwithstanding any contrary provisions of this Agreement,
Concessionaire, after the Commencement Date, shall indemnify and
hold City harmless from any loss, damage, cost, or expense of the
City, including, without limitation, reasonable attorney's fees, incurred
as a result of, arising from, or connected with the placement by
Concessionaire, and/or its employees, vendors, agents and/or
subcontractors, after the Commencement Date, but during the term of
this Agreement, of any hazardous substance or petroleum products
on, under, in or upon the Concession Area as those terms are defined
by applicable Federal and State Statute, or any environmental rules
and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants
or employees. The provisions of this Subsection 10.6 shall survive the
termination or earlier expiration of this Agreement.
10.7 Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Concession Area and any of
the facilities, goods and/or other equipment thereon. Under no circumstances
shall the City be responsible for any stolen or damaged goods, facilities,
materials and/or other equipment, nor shall City be responsible for any stolen
or damaged personal property of Concessionaire's employees, vendors,
patrons, guests, invitees, and/or other third parties.
10.8 Vehicles on the Public RiQht-of-Wav.
Concessionaire's employees, vendors, patrons, guests, invitees, and/or other
third parties vehicles and/or trailers shall only be allowed on the street
adjacent to Concession Area/public right-of-way for purposes of setting up
the concession operations, and to remove same at the close of operations
each day, and any and all such vehicles for purposes thereon must be
removed from the public right-of-way immediately thereafter. Concessionaire
shall contractually require that anyone operating a vehicle for, or on behalf of
Concessionaire and/or its employees, agents, and/or vendors, must have a
current valid Florida Driver's License. Said set-up and move-out operations
shall only be permitted during regular hours for same, pursuant to
Subsection 9.2 herein, and shall be completed safely and expeditiously. No
vehicular traffic or parking will be permitted on the public right-of-way during
concession hours of operation, pursuant to Subsection 9.2 herein. Access to
the public right-of-way shall only be permitted via specifically designated
points authorized for such use and the nearest authorized access to a
concession vendor's operation.
Vehicles operated on the public right-of-way shall not exceed 5 M.P.H. and
shall only operate in the immediate vicinity of the concession, or to-and-from
the nearest predetermined and assigned access point. After transporting
facilities, goods, merchandise, equipment, and/or other items to the
20
Concession Area, the vehicles shall be removed from the public rfght-of-way
and parked in a legally authorized location. Driving on the public right-of-way
shall be kept to a minimum. No vehicular traffic will be permitted on the
public right-of-way, at any time or for any purpose, other than as stated
herein.
Vehicle operator must inspect the vehicles perimeter and surrounding area,
prior to turning the vehicles ignition switch, to assure a clear path of egress
and only proceed with extreme caution.
10.9 Inspection.
The Concessionaire agrees that the Concession Area and all facilities and
operations thereon, including but not limited to vendor booths, may be
inspected at any time during days and hours of operation by the City
Manager or his designee, or by any other Municipal, County, State officer, or
agency having responsibilities for inspections of such operations. The
Concessionaire hereby waives all claims against the City for compensation
for loss or damage sustained by reason of any interference (which
interference, if by the City, must be reasonable) with the concession
operation by any public agency or official in enforcing their duties or any laws
or ordinances. Any such interference (which interference, if by the City, must
be reasonable) shall not relieve the Concessionaire from any obligation
hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property damage.
This policy must also contain coverage for premises operations, products
and contractual liability.
b. Workers Compensation Insurance shall be provided as required under the
Laws of the State of Florida.
c. Automobile Insurance for any vehicles used for, or associated with
concessionaire's operations shall be provided covering all owned, leased,
and hired vehicles and non-ownership liability for not less than the following
limits:
Bodily Injury
Bodily Injury
Property Damage
$1,000,000 per person
$1,000,000 per accident
$1,000,000 per accident
Failure to procure or maintain the required insurance program shall, at the
City's discretion, either (i) constitute an automatic default of the Concession
Agreement under which the City may, upon written notice to Concessionaire,
immediately terminate the Agreement; or (ii) the City, in its sole discretion,
may obtain the insurance itself, in which case said insurance shall be charged
21
back to the Concessionaire as provided in the following paragraph.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the
City's Risk Manager. Should Concessionaire fail to obtain, maintain or renew the
policies of insurance referred to above, in the required amounts, the City may, at its
sole discretion, automatically terminate this Agreement or, in the alternative, deem
to obtain such insurance, and any sums expended by City in obtaining said
insurance, shall be repaid by Concessionaire to City, plus ten percent (10%) of the
amount of premiums paid to compensate City for its administrative costs. If
Concessionaire fails to repay City's expenditures within fifteen (15) days of demand,
the total sum owed shall accrue interest at the rate of twelve percent (12%) until
paid, or, at its option, the City may declare the Agreement in default pursuant to
Section 13 herein.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of$10.00 and other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify, hold harmless and
defend the City, its agents, servants and employees from and against any
claim, demand or cause of action of whatsoever kind or nature arising out of
error, omission, or negligent act of Concessionaire, and/or its vendors,
agents, servants, employees and/or subcontractors and/or
subconcessionaires in the performance of services under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of
$10.00 and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its agents, servants or employees, from and
against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Concessionaire, and/or its vendors, agents,
servants, employees and/or subcontractors and/or subconcessionaires, not
included in the paragraph in the Subsection above and for which the City, its
agents, servants or employees are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
22
12.4 Subroqation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
12.5 Force Maieure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. fire which renders at least thirty percent (30%) of the Concessionaire's
cumulative facilities and operations unusable and which is not caused
by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; civil commotion occurring on
the Concession Area during or in connection with any event or other
matter or condition of like nature; or
c. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area or operation described in this Agreement,
Concessionaire shall not thereby be deemed to be in default or to have
breached any part of this Agreement, unless such dispute shall have been
caused by illegal labor practices or violations by Concessionaire of applicable
collective bargaining agreements and there has been a final determination of
such fact which is not cured by Concessionaire within thirty (30) days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor
Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City of Miami Beach, Florida, from all demands, claims,
actions and causes of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An
event of default by Concessionaire shall entitle City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those set
forth in Subsection 13.4. An event of default by City shall entitle Concessionaire to exercise
any and all remedies described as Concessionaire's remedies under this Agreement,
including but not limited to those set forth in Subsection 13.5.
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13.1
Bankruptcv.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
/'
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of $50.00 per day for such late
payment, in addition to interest at the highest rate allowable by law (currently
12% per annum). If any payment and accumulated penalties are not received
within fifteen (15) days after the payment due date, and such failure
continues three (3) days after written notice thereof, then the City may,
without further demand or notice, terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety (90) days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this Subsection, it shall
promptly provide City with written notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section 13, shall occur, the
City may, after notice (if required) and the expiration of cure periods (as
provided above), at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such defaults and to compensate City
for damages resulting from such defaults, including but not limited to the right
24
to give to Concessionaire a notice of termination of this Agreement. If such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession Area
to City pursuant to the provisions of Subsection 13.7. Upon the termination of
this Agreement, all rights and interest of Concessionaire in and to the
Concession Area and to this Agreement, and every part thereof, shall cease
and terminate and City may, in addition to any other rights and remedies it
may have, retain all sums paid to it by Concessionaire under this Agreement.
In addition to the rights set forth above, City shall have the rights to pursue
any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.5 If an event of default by the City, as set forth in this Section 13, shall occur,
the Concessionaire may, after notice (if required) and the expiration of the
cure periods (as provided above), at its sole option and discretion, terminate
this Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days from the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Area to City pursuant to the provisions of
Subsection 13.7.
13.6 Termination for Convenience/Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may
be terminated by the City, for convenience and without cause, upon
the furnishing of thirty (30) days prior written notice to Concessionaire.
Conversely, this Agreement may be terminated
Concessionaire, for convenience and without cause,
furnishing of thirty (30) days prior written notice to City.
by the
upon the
13.6.2
Concessionaire acknowledges that the City may develop a schedule
of capital improvements for the right-of-way, including all or a portion
of the Concession Area, which may entail a closure of all or a portion
of the right-of-way and Concession Area, at the City Commission's
sole discretion. In the event that the City closes down the right-of-way,
or any other portion of the Concession Area, for the purpose of
undertaking a capital improvement plan thereon, then the parties
agree that that portion of the Agreement referencing said individual
Concession Area shall be partially terminated for convenience,
25
without cause and without penalty to either party, and only as to that
portion of the Concession Area which has been closed. Such a
termination shall become effective upon thirty (30) days prior written
notice to Concessionaire.
13.6.3 In the event of termination or partial termination by City of the
Agreement pursuant to this Subsection, Concessionaire herein
acknowledges and agrees that it shall not have any claim, demand, or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in business or damages for interruption of services or
interference in its concession operations by Concessionaire or its
vendors). However, if it is determined, via a contract year end-review,
that a termination or partial termination results in a decrease to the
gross revenues derived by the Concessionaire, then Concessionaire's
MG amount due to the City, pursuant to Section 4.3, shall be reduced
proportionately equal to the percentage of Concession Area that was
terminated or partially terminated and for the period of time of said
partial termination.
13.6.4 In the event of termination for convenience by Concessionaire
pursuant to Subsection 13.6.1, Concessionaire herein acknowledges
and agrees that it shall not have any claim, demand, or cause of
action of whatsoever kind or nature, against the City, its agents,
servants and employees. Moreover, Concessionaire's MG amount
due to the City, pursuant to Section 4.3, shall be reduced
proportionately equal to the period of time remaining on the current
term of this Agreement.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or in the event of a partial termination or
termination of the entire Agreement, Concessionaire shall surrender the
Concession Area (or portion thereof in the event of a partial termination) in
the same condition as the Concession Area was prior to the commencement
of this Agreement, reasonable wear and tear excepted. Concessionaire shall
remove all its facilities, equipment, fixtures, personal property, etc. upon two
(2) hours written notice from the City Manager or his designee unless a
longer time period is agreed to by the City. Concessionaire's obligation to
observe or perform this covenant shall survive the expiration or other
term ination of this Agreement. Continued occupancy of the Concession Area
(or portion thereof) after termination (or partial termination) of the Agreement
shall constitute trespass by the Concessionaire, and may be prosecuted as
such. In addition, the Concessionaire shall pay to the City one thousand
dollars ($1,000) per day as liquidated damages for such trespass and
holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
26
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection, or in the Agreement, Concessionaire shall
not assign, sublease, grant any concession or license, permit the use of by any other
person other than Concessionaire, or otherwise transfer all or any portion of this
Agreement and/or of the Concession Area (all of the forgoing are herein after referred to
collectively as "transfers"), without the prior written consent of the City.
Concessionaire shall notify the City Manager or his designee of any proposed transfer,
prior to consummation of same and the City or the City Manager or his designee, as
applicable, shall respond within thirty (30) days. In the event that any such transfer is
approved, the transferee shall agree to be bound by all the covenants of this Agreement
required of the transferor hereunder. Any transfer made without complying with this Section
shall be null, void, and of no effect and shall constitute an act of default under this
Agreement. Notwithstanding any such consent, or any permitted transfer under any
provision of this Section, unless expressly released by the City, Concessionaire shall
remain jointly and severally liable (along with each approved transferee, who shall
automatically become liable for all obligations of the transferor hereunder with respect to
that portion of the Agreement so transferred), and the City shall be permitted to enforce the
provisions of this Agreement directly against Concessionaire or any transferee of the
Concessionaire without proceeding in any way against any other person.
For purposes of this Section 15, Concessionaire's selection of vendors for the Market shall
not be deemed a transfer.
SECTION 16. SPECIAL EVENTS.
16.1 Concessionaire's proposed uses, as set forth in Section 3 herein, do not
contemplate the production, promotion or sponsorship by the Concessionaire
of special events in any portion of the Concession Area. In the event
Concessionaire does produce, promote or sponsor a special event in the
Concession Area, it shall abide by the City's Special Events Permit
Requirements and Guidelines. For any use, other than those provided for in
this Agreement, a Special Events Permit may be required and shall be
obtained through the City's Department of Tourism and Cultural
Development. The City Manager's authorization must be obtained for any
such special event.
The City Administration shall evaluate requests for Special Events Permits
on a case by case basis, in accordance with the City's Special Event Permit
Requirements and Guidelines.
In the event that a special event and/or film permit is requested by an entity,
other than the Concessionaire, and the proposed special event and/or film
production is scheduled to occur within all or a portion of the Concession
Area, the Concessionaire agrees to cooperate with the City and the special
event permit applicant to allow use of the Concession Area during the period
of the special event, including set-up and break-down time.
27
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest ofthe City, the City
reserves the right to displace the Concessionaire for City produced special
events and/or other City produced productions. In such cases, the City may
request that the Concessionaire cease and desist operations during the term
of, and in the area of, the special event and/or production, and the
Concessionaire shall cease and desist during said term. In the event that it is
determined, via a contract year end-review, that ceasing and desisting of
concession operations, as stated herein, results in a decrease to the
estimated gross revenues derived by the Concessionaire, then
Concessionaire's MG amount due to the City, pursuant to Section 4.3, shall
be reduced proportionately equal to the percentage of reduced hours of
operation caused by said special event and/or production. If the
Concessionaire is not required to close, or chooses to remain open without
interference to the special event and/or production, Concessionaire agrees to
cooperate with the City. If the Concessionaire is allowed to remain open
during special events and/or productions, the Concessionaire may be
allowed to have in operation its normal daily complement of facilities and
vendors. "Normal" shall be defined as facilities and vendors, as approved by
the City, that the Concessionaire has available for the public on a normal
business day. Such facilities and vendors shall not be increased or altered
during special events and/or productions without the prior written permission
of the City Manager or his designee. To the extent that the normal business
day complement of facilities and vendors is displaced by the special event
and/or production, the Concessionaire may reallocate such displaced
facilities and vendors on a pro-rata basis within an area of the Concession
Area not being utilized by the special event and/or production.
For purposes of this Section 16, "normal business day" shall be defined as
set forth in Section 9 herein, entitled "Schedule of Operations".
16.3 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area, Concessionaire shall not be liable for
any charge, fee or other expense, governmental or otherwise, in connection
with such special event.
16.4 Street Vendors / Street Performers.
Any locations within the Concession Area identified by the City for non-
Concessionaire sponsored street vendors and/or street performers, in
accordance with City of Miami Beach Ordinance No. 2002-3366, as may be
amended from time to time, or otherwise in accordance with the City's
respective rules, regulations, and guidelines associated therewith, as same
may also be amended from time to time, are excluded from this Agreement,
and Concessionaire shall not interfere or otherwise prohibit said street
vendors and/or street performers' activities upon such designated portions of
the public right-of-way. Similarly, Concessionaire shall not prohibit or
otherwise interfere with the activities of any street vendors and/or street
performers who may not be part of a City of Miami Beach permitted process,
28
but who may have certain constitutionally protected rights to perform and/or
offer for sale their wares on public rights-of-way.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area, operations, or facilities for any improper, immoral or
offensive purpose, or for any purpose in violation of any Federal, State, County, or
Municipal ordinance, rule, order or regulation, or of any governmental rule or regulation
now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify,
and forever save and keep harmless the City, its agents, employees and contractors from
and against damage, penalty, fine, judgment, expense or charge suffered, imposed,
assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any act, neglect or omission of the Concessionaire, its vendors,
employees, agents, and/or subcontractors regarding the Concession. In the event of any
violation by the Concessionaire, or if the City or its authorized representative shall deem
any conduct on the part of the Concessionaire, its vendors, agents, employees and/or
subcontractors, to be objectionable or improper, the City shall have the option, at its sole
discretion, to either (i) automatically terminate the Agreement, upon prior written notice to
Concessionaire, or to (ii) suspend the concession operations should the Concessionaire
fail to correct any such violation, conduct, or practice to the satisfaction of the City within
twenty-four (24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice, and such suspension shall continue until the violation is
cured. The Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for facilities and or space (booth) rental, be
consistent with the price schedule( s) herein submitted by the Concessionaire and approved
by the City and incorporated herein as Exhibit 3.1 to this Agreement. All subsequent price
increases and amendments to Exhibit 3.1 must be approved in writing by the City Manager,
or his designee, and prior to such changes being implemented within the Concession Area
a new updated Exhibit 3.1 will be incorporated into this Agreement. Notwithstanding the
foregoing, Concessionaire agrees and acknowledges that any discounted prices it may
offer for the rental of facilities shall not in any way reduce the amount of remuneration due
to the City, including but not limited to the Percentage of Gross (Section 4.2), which shall
be based and calculated on the prices set forth in said Exhibit 3.1
The City shall have the final right of approval for all such prices and changes, but said right
shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to refrain
from the sale or rental of any item identified as prohibited by City law and/or other
applicable law and to sell only those items approved by the City.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to the Concessionaire at the
following address:
29
Ms. Claire Tomlin
The Market Company
428 Espanola Way
Miami Beach, Florida 33133
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail, return receipt requested, to the City of Miami Beach
at the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon
giving the other party written notification. All notices under this Concession Agreement
must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, Miami-Dade County,
State, and Federal ordinances, statutes, rules and regulations, including but
not limited to all applicable environmental City, County, State, and Federal
ordinances, statutes, rules and regulations.
20.2 Governinq Law.
This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws ofthe State of Florida. In case of
any inconsistency between the terms of this Agreement, and any applicable
general or special law, said general or special law shall govern, unless
otherwise provided herein.
20.3 Equal Emplovment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of ADA.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
sex, sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Concession Agreement; and further, there shall be no discrimination
regarding any use, service, maintenance, or operation within the Concession
Area. All concession operations and services offered shall be made available
to the public, subject to the right of the Concessionaire and the City to
30
establish and enforce rules and regulations to provide for the safety, orderly
operation and security of the operations and the facilities.
20.4.1
Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
21.3 Complete AQreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Concessionaire's operations, as
contemplated herein.
21.4 Headinqs.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
21.5 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
21.7 Severabilitv.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
31
21.8
21.9
21.10
21.11
21.12
21.13
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement as so modified remains in full force and effect.
RiQht of Entrv.
The City, at the direction of the City Manager, shall at all times during days
and hours of operation, have the right to enter into and upon any and all
parts of the Concession Area for the purposes of examining the same for any
reason relating to the obligations of parties to this Agreement.
Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
equipment or space is leased to the Concessionaire, that it is a
concessionaire and not a lessee; that the Concessionaire's right to operate
the concession shall continue only so long as this Agreement remains in
effect.
Siqnaqe.
Concessionaire shall provide, at its sole cost and expense, any required
signs at its concessions. All advertising, signage and postings shall be
approved, in writing, by the City in its proprietary capacity, and shall be in
accordance with all applicable Municipal, County, State and Federal laws
and regulations. Any signage posted by Concessionaire on its facilities and
equipment shall be subject to the prior approval of the City as to size, shape
and placement of same.
Use of the Right-of-Wav.
The right-of-way is for the use and enjoyment of the public and the
public's right to such use shall not be infringed upon by any activity of
the Concessionaire. Upon execution ofthis Agreement, Concessionaire
acknowledges that all of the rights-of-way within the Concession Area
are public, and as such, concession operations must not restrict, or
appear to restrict, access to the general public, or in any way limit the
public nature or ambiance of the adjacent area. The Concessionaire will
conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent area, and make no public disturbances.
Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operations contemplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire with regard to its
responsibilities pursuant to this Concession Agreement.
Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not
limited to references to "sole option" or "sole discretion" or words of similar
32
21.14
21.15
21.16
21.17
meaning, in each instance in which the approval or consent or other action of
the City Commission or the City Manager or his designee is allowed or
required in this Agreement, such approval, consent or other action shall not
be unreasonably withheld, conditioned or delayed.
Procedure for Approvals and/or Consents.
Intentionally Omitted.
No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
No Third Party Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subconcessionaires, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
Attornevs' Fees.
If it becomes necessary for City or Concessionaire to enforce their respective
rights under this Agreement or any part hereof through litigation,
Concessionaire and City agree that the prevailing party shall be entitled to
recover from the other party all costs and expenses of such litigation,
including a reasonable attorneys' fee and costs, for all trial and appellate
proceedings.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for breach of this Agreement, so that its liability for any
such breach never exceeds the sum of $1 0,000.00. Concessionaire hereby expresses its
willingness to enter into this Agreement with a $10,000.00 limitation on recovery for any
action for breach of contract. Accordingly, and in consideration of the separate
consideration of $1 0.00, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of
$10,000.00, for any action for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph orelsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section
68.28.
SECTION 23. VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE
33
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S).
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
PASSED AND ADOPTED THIS
/1 t~ M Met/-
,2004.
Attest:
~~ERf~
IAMI BEACH
Witness:
THE MARKET COMPANY, INC.
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vf ~- . U)~'Y'-(1/
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Signature
4ra.~~-ccmt~nt ~~~.
Name and Title of Signatory
JMG/CMC/JD/rlr
F:\DDHPI$ALL IASSE1\MarketslEspanolaWaylEspanolaWayConcessionAgreement.FinaI.doc
APPROVED AS TO
FORM & LANGUAGI
A FOR EXECUTION
14itlllf/; 6 ;1;6 Y
34
EXHIBIT 2.0
(Page 1 of 2)
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35
EXHIBIT 2.0
(Page 2 of 2)
CITY OF MIAMI BEACH FIRE DEPARTMENT
Fire Prevention Division
To: Rob<.'rt Reboso
From: Captain Glenda Guise
Date: 2/1 V04
Subjl:el: Espanola Way Market comments
This memo is regarding the proposed placement of vending booths at the Espanola Way
Marketplace. Pursuant to the onsite insp;x.1ion eondocted on Februar>' 7, 2004, tbe following are the
Fire Department's comments and requirements. Be advised that these are a bittlf II compromise from
the original recommendations and are subject to modification if a serious problem is encountered or
brought to light in the flltUre.
The 12' clearance on the roadway between Ihe display tables will be maintained along the
length of EsplUlola Way. The tables will be placed in the indenk'li parking spac~'S. This
can be monitored by keeping the front legs of the tables at least one foot b;lCk from the
asphalt pavement (the middle of the concrete ~Itter). It is lUlderslOOd that where there are
no pllrking spaces. tables will not be permitted on the roadway as there is nil practical
space for them to stay within the limits.
The light-weight shade tents shall have Ule oock k-g support up tln the sidewalk/curb and
the front leg may be at the outer edge of the concrete gutter. I.cgs may oot be on the black
asphalt. This maintains the 10' clearance proposed by Commissioner Garcia. While
maintaining 12' clearance for the heavier tables. In the event of an emergent need tIll'
lIl:e~"Ss to the strcct, the tents may easily be slid back Ihe extra fool. I>lcase instntel th.:
vendors on this procedure.
The intersection of EspanoJa Way and Drexel must still mainulin the 12' clearance
measun.'li perpendicular to the curb and slr~....t. The proposed booth ,lIthe northeast
climer may be placed on a diagonal ((lmaintain the comer.
Five mobile pu.sh cnlts shall he permitted along the length of the street. The push carIS
shalll.>c tntt "flower eart~-type pu:;h carts, with large wheels and a handle. not to exceed
3' x 5" with un attached umbrella, as oppos.:d to tables 011 wheels. fhe}' shall be mannt.>d
at all times and shall be stored off of the street during the hours when the market is closed.
:-10 merchandise or other supplies to the cart may be stored ontne slrcct. All aeeessork'S
must be mobile and 011 the cart.
Acce~ to the publie sehoollllllst he maintained. do not block gates.
Hydrants must be maintained accessible and cannot be blocked in any manner,
It is understr>od thatlhe booths, tents and merchandise will be cleared from the street caeh
night when the market closes.
lhe booths at the intersection of bpanola Way and Drexel Avc. "ill have to be
r.:evaluated in the futUle with the e(ffistruction of the pmptls.."<l fountain.
Should any conditions change on the street in the future, modifications to this plan will be
mtuk as needed.
If )'ou have funht.'f questions. pica....: contact me by t.'ITlail at Jili:ru;l.!!E.uiscr.!i)miamibeachtl.!::o.y or by
phone at 305-673-7123.
36
EXHIBIT 3.1
(Rental Fee Schedule)
The Market Company Inc.
November 14, 2003
Re: f;spanol~ Way Weelwld Festival I SeaslIDal Fen
Dur Vendor:
Thank you for your continued participation in tbe Espanola Way Weekend F"lival
every weekend. The se..onal rates hav'c beell calculated and your fee beginning
Ileumber I, 2003 is aoing to be:
{Friday nighl : 30.00 + 5.00 + 2.10 = $ 37.10
~i~ Saturday day (400 block) : 55,00 + 5,00+ 3,85 = $ 63.85
iii Saturday night (400 block) : 50.00 + 5.00. 3.50 = S 58.50
Saturday day + night (400 block): 80.00 + 10.00 + 5.60 = S 95.60
Sunday : 60.00 + 5.00 + 4.20 = $ 69.20
,^",L ~ Saturday (Drnel Ave) : 60.00 + 5.00 + 4.20 - S 69.20
j/le-- (Sunday (Drnel Ave) : 55.00 + 5.00 + 3,85 = S 63.85
Sincerely,
Oaire Tomlin
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Malf'l(J: 238 Eer.t Son Mttrino Drive. Miaf'ni Be-ach, FL 33'\:39 . a~"Smess locatlon: 419C Espanola \""li:ti" Miami UGech. Fl33139
Tel: _ 531 0038 . Fax: 305 !hi;> 0082 . ""......U.."""1<.t::oznpanyory
37
/
/
EXHIBIT 3.1.1
(Facilities Design)
38
EXHIBIT 3.1.2.1
(Page 1 of 2)
(Special Events Disability Access Punch List)
Special Events Disability Access Punch Ust
1. Ensure curb cuts and cross walks are kept free and clear for usage, with a
continuous accessible route of 44 inches in width.
2. The Event Producer must ensure that any nearby accessible on- or off-
street parking ("handicapped parking") is not obstructed by vehicles
loading/unloading equipment, etc. If sllch obstructions occur, the Event
Producer must see that such obstructions are removed immediately.
Accessible parking spaces shall be connected to the site's continuous
accessible route, with no obstructions between the accessible parking
spaces and the curb ramps that serve those spaces.
3. Any and all accessible routes created and/or installed by the Event
Producer, or under the Event Producer's supervision, must have no abrupt
change in level in excess of 14 inch. Where such changes in level are
present, properly bevel the change in level at a 1:2 ratio or provide a ramp
with a slope not to exceed a 1: 12 ratio. This ;s necessary to allow passage
of wheelchairs or strollers and prevent tripping or the catching of walkers
and canes. Any ramps provided must be in compliance with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection, handrails, and surface.
4. Provide a smooth transition between temporary pathways and any ramps,
sidewalks, streets, or parking lots. This means no change in level
exceeding % inch. Any change exceeding % inch requires beveling at a
1:2 ratio or the installation of a ramp with a slope not to exceed a 1: 12
ratio. Any ramps provided must be In compliance with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection, handrails, and surface.
5. AU cashier counters (counters where money transactions occur) must be
no higher than 36 inches maximum above finish floor, for a minimum
length of 36 inches.
6. Maintain an accessible route for access to merchandise that is both within
a vendor space, as well as merchandise not contained within a vendor
space. If the overflow of merchandise for patron viewing is placed behind
a booth, then provide adjacent access to the merchandise via a curb
ramp, as well as the placement of a pathway with a stable and firm
surface necessary for the use of wheelchairs and mobility aids.
7. Merchandise for display should be within a line of sight no higher than 48
inches for persons of short stature or wheelchair users. If merchandise is
39
EXHIBIT 3.1.2.1
(Page 2 of 2) .
(Special Events Disability Access Punch List)
displayed higher than 48 inches, merchant must provide assistance to
disabled customers in order to reach items.
8. All vendor spaces shall be located on an accessible route that is a
minimum of 44 inches wide.
9. If tables and seating are provided for the consumption of food, all aisles
adjacent to accessible fixed seating shall provide 30 inch by 48 inch clear
floor space for wheelchairs. Where there are open positions along both
sides of such aisles, the aisles shall be not less than 52 inches wide.
10. For wheelchair seating spaces provided at tables or counters. knee
spaces at least 27 inches high, 30 inches wide, and 19 inches deep shall
be provided. The tops of accessible tables and counters shall be from 28
inches to 34 inches above the finish floor or ground.
11. Where food or drink is served at counters exceeding 34 inches in height
for consumption by customers seated on stools or standing at the counter,
a portion of the main counter which is 60 inches in length minimum shall
be provided in compliance with the requirements of Items #9 and #10
above. or service shall be available at accessible tables within the same
area.
12. Where portable toilets are provided, an accessible route shall be provided
to the toilets. Five percent of the total number of toilets must be
accessible. If clusters of portable toilets are distributed throughout the site,
then each cluster must have accessible units.
13.1f general assembly seating or standing space is provided for audience
members attending a public performance at a special event, reserved
wheelchair seating most be provided. Such seating must be provided in a
location that allows wheelchair users an unobstructed line of sight to the
stage. If seating capacity accommodates g~ater than 300 persons. then
accessible seating shall be dispersed throughout the venue.
40
EXHIBIT 3.2.1
(Arts and Crafts)
M,rchandise Sold al The Esoanola Wav Wee\<end Festival
Ad
Paintings, photography, sculpture. mobiles. wood carvings, ele,
~
llems made by a particular culture; I.e. lace, woven prodUcts. jewelry, etc.
WatChes
Jewelry
Clothes
Purses
Shoes
sunglasses
Belts
Cards
Gift Items
Vintage clothes
PhotographS
Belly Dancing Gear
Pillows
Incense
And other miscellaneous items
41
EXHIBIT A
(Page 1 of 6)
(Vendor Guidelines)
The Market Company, Inc.
428 Espaiiola Way - Mlami Beach..1 33139
(305) 531..0038 L .. (305) 532-0082 f.
Vendor Guidelines
Definition of Vendor: All persons participating in a market. Merchants who 0\\11 stores and
participate in a market are also vendors and must follow vendor guidelines.
MlITket Vlealion:
o Lincoln Road
o F.c;panola 0 North Beach 0 FestivArt
Other__
Market Davs:
o Friday
o Saturday
o Suoday
o
o
Monday
Market HOlln: ____ a.m. to _ p.m.
or: _ p.m. to _ a.m.
Sales stop at closing time.
Sales stop at closing time.
Market Set-np: as early as: a.m.
or._p.m.
Street must be clear by ._ p.m.
Street must be clear by _ a.m.
The Market Company has a permit ",ilb the Cit). of Miami Beach which designates set-up and
break-down times. It is imperative that vendOl"$ follow these time guidelines. Y!:.!1t!on1 who do
not follow the lPlidelincs will be fined $50 for the first offJ<1l$. $1 Oil for the 8e(:ond ofie.~
thereafter will not !:!L4!lowel! to return to the market.
Fee: $..
+ Sales Tax: $
+ Insurance: $
= Total: $_..
Market Fe~: Market fees must be paid in advance by the close of the day on the Thursday
before the market is to be held. Fees can he paid in cash, check or credit card (automatic credit
card dedu(..'tions can be arra:ngcd). Pa)'IIlent is made at The Market Compan)' office al 418
Espanola Way. This payment guarantees 11 reserved space in the market. If a vendor cannot
attend a market for which payment has been made" cancellation made 48 bours in advance will
transfer paid funds to the next market date. Funds ""ill be forfeited if cancellatilln is not made.
Vendors who do not pay in advance but choose to come and obtain an unreserved space will pay
prior to ~..t up and will be assigned a space on a first come first served ba.~is determined by the
number of spact:s available.
Markm Operate Rain or Shine. If a vendor elects to set up for product sales, even if rain
reduces sales, a minimum fee of 50% 'will be charged. In the case of advanced payment, if a
vendor questions whether a market will be set up due to rain, he should call the market
coordinator to prllt~'Ct his funds.
Vendor Sllaees lire A!I.'imled bv The Market Company: Vendors are expected to attend each
weekend. If Ii vendor misses two market day6 without notice his assij,.'llcd space will be forfeilcd
and he will re.apply for a market space.
42
EXHIBIT A
(Page 2 of 6)
(Vendor Guidelines)
Additionall\farkets: Vendors are welcomed to participate in mulliple markets. for a vendor to
be eligible to be in additional markets be must be prepared to stay in his original marketplace and
appl)' to the additional markets.
Vendor Displav Art\ll: Vendors furnish their o\"n tents, umbrellas, Ulbles, cloths, carls, chairs,
displays, trash cans, brooms and trash bag~. Market standards are white. lOx 1 0 IL'I1~ (lnsta-
shade, EZUp), green market wnbrellas \'nth Slands and gn:cn table slcirts (Dade rowel -
305/751-1284 S 3.75 linear foot). Markel aesthetics are very important f)cs"ribe )'OUT area:
Tents and Umbrellas: Vendor's tent~ and umbrel1ll.~ must be wei2hed down immediately after
set-\I1). lmmt..-diatelv followinl! set-up of tables. the table .~kirts must be installed Vendors who do
not follow these rules will be fined: SSG/fuSI oifense. $IOOlsecooo offense and th..m:after not
allowed to uarticiDate in a market.
Vendors Who Need Electricity: Vendors who need electricity may make a reauest to The
Market Company reoro..<;entative for access to an aJlprove9~lectrical outlet. Vendors must
provide heavy-dUlY grm,m~ cords and a heaVY-dut\. Ill'ounded connector. Cord.'. exooscd on the
sidl:\valk or street must be covered with pta.~lie heaw-dutv covers and duck-ta~ in place.
Vendors who provide Ii.llht can use qp to 300 ~...,pg lO'ltlO' booth. If a vendor does not
follow the \!uidelines for the use of eh:ctricitv, thc followin!! fines will be institutL-d: S50/first
gj!~!!t. S IOCJ/scL"Ond offense and there~Jh!l vendt>r will not be pennitted particination.
Vendors Are Allowed A lO'x10' Space: All tables must fit'within the 10'xlO' space.
Vendor Behador. Vendors must dress appropriately ,~ith shirts on at all times. Alcoholic
beverage consumption by vendors is not allowed. Please see Vendor Rules & Regulations.
Vendor Clean-un: Vendors are responsible for removal of all trash related to their stand.. They
are not to lL'<C public trash cans. They are to rem()ve trash from the street. Vend()TS are advised 10
bring their own trash receptacle and broom. If a vendor leaves \rash he will be fined $50/first
offense. A second offense will cost $100. Therea:fter the vendor will not be allowed 10 participate
in the market
Vendor Rental PToecdure: An appoinunent must be made with The Market Company to review
t'le guidelines. The Markel Company application and ll!:,'TCCmcot must be completed and signed.
Upon accL-ptance vcndor ",ill be allowed to pmticipate in the market.
Smn5fPricin\!: No handwrittt:n signs are allowed. Products must be priced either individually,
by basketii..T'.lle or on a posted sign. Signs will be on white background only. The Market
COlnpany can rccomm'Jnda sign maker.
State Sales Tax and F()Od Handlin!! Permits: Vendors must provide The Ml\I'Ket Company
with a C()py of all such licenses required prior to joining the market. In the case of a food
handling lieense, vendors must provide munthly renewal prior to returning tll the market. If a
vendor docs nnt follow the state guidelines for food handling they mu.~t leave tbe market.
Parkinl!.: Following loading/unloading, vendor's vehides must be removed from
loadingfWlloading arca.
43
EXHIBIT A
(Page 3 of 6)
(Vendor Guidelines)
AllJ"etlmeut "..itb Relevant Associations: The markets Me designed as economic development
for the area in which they are located. If there is a complaint from a business about 11 particular
vendor selling products that interfere with his business The Market Compan)' may have to ask a
vendor to no longer participate in the event.
Lincoln Road. NOM Beach, Espanola Way and Espanola Way FestivArt and other markets.
JUlIn_ee: The Market Company ha<; liability insurance in the amount of$ 1,000,000 pursuant
to permit requirements of the City of Miami Beach. Veudors must provide Dl'OOf of insW'l4P.9t...for
their participation in the market which covers oropertv damage. peTSl.'nal iniun' and product
liabilirv in the amount of $1.000.000. This 'DfOl.,f of insurance must aecomll8llV vendor's
armlication. Most farmlbusin~s policies rover activities at tj)e mat~~, S::~k with YOW'
insurance <:aIrier. If a vendor does not have insurance and cannot provide proof, he will be
responsible for paying The Market Company $ 5.00 eaeh day 11.) cover his proPI.:rty damage and
persona1 injury liability. If be sells edible products whieh require product liability he will be
n:spoosible for paying S 8.00 each day which includes property damage, personal il\iury and
product liability. Coverage is up to one million dollars in liability. Each vendor will sign an
agreement accepting responsibility for any damages over one million dollars and ~ to hold
harmless:mad indemnify The Market Company, ilS o'wncrs, agenlS and employees and The City
of MiamiBcaclt from any and allliabilil)' arising from participation and sales in the market.
44
EXHIBIT A
(Page 4 of 6)
(Vendor Guidelines)
....be
LlMarket
company
?Jti>:rr.ii$ C"mmlu SpEric! ~ and resii~ Ccmp::'l):'
4%8 Espaliola Way. Mia",; Beach, Fl,J3139. ~5JI.OO38
Addendum to the Market Company Vendor Guidelines
Vendor Rules & Reaulations
In order to provide a safe, secure and pleasant environment, The Market Company
requests your cooperation In complying with the following vendor rules and
regulations:
1. The use of profanity, loud, rude, disruptJve or threatening behavior by any vendor
or participant in tile market is strictly prohibited.
2. Appropriate dress, incItJding shirts and shoes Of sandals, must be worn at all
times.
3. No booth may be left unattended at anytime.
4. Smoking while manning a booth is strictly prohibited.
5. The playing of loud radios that disturb the pleasant shopping experience is
strictly prohibited.
6. Taking unauthorized photographs or videos of vendors or their property is stricUy
prohibited.
7. The display, selling or SOliciting of anything pornographic in nature is strictly
prohibited.
8. Possession/consumption of alcoholic beverages and/or illegal substances is
strictly prohibited.
9. The carrying of weapon(s) 01 any kind, possession of any item defined as a
weapon, whether illegal or not is strictly prohibited.
I understand and accept the conditions set forth in the Market Company Vendor
Guidelines and the Market Company Vendor Rules and Regulations.
Signed:
Date;
Your cooperation I" abiding by the Market Company Vendor Guidelines and
Vendor Rules and ~ulations is appreciated. The Market Company or its
designee, reserves.,the .right to request that those who refuse to comply wl1h the
above con.lli9onlol..". the market immediately.
45
EXHIBIT A
(Page 5 of 6)
(Vendor Guidelines)
t1\l\a rket
company
"'1i<~;:j";'~ P,e-mieof S;.;et:J::;j\ l~.end f.~~ ~l"1;>>"')'
Tbe Market Company, Ine. - 428 Espaiioh Way - Miami Beach, Florida 33139
SUBJECT: LETTER OF TERMINATION AS A VENDOR IN THE MARKET.
To Whom It May Concern:
This is to advise you that I,
do hereby resign my right to participate as a ,'endor in the market(s) preseoted 11)'
The Market Company, effeetin immediately, because I have vioiated the terms of
agreeUlCllt as set forth in the Vendor Guidelines and Vendor Rules and Regulations.
Such terms were agreed upon in the I..ast Cbance AgrecmCllt whkh I signed on
Sincerely,
46
EXHIBIT A
(Page 6 of 6)
(Vendor Guidelines)
The Market Company, Jnc.
428 Espai'ioJa Way - Miami Beach, .., 33139
(305) 531-0038 t. - (305) 532-0082 f.
APPLICATION &. AGREEMENT
Applicant:
Address:
City:
SlAle: __ZIP CODE:.
Business Name: __
SlIh: ofPlorida Sales TiIX';
Phone:
E-mail:_
Cell:
Fax:
Pager: ,,____.
o North Beach 0 Lincoln Rd 0 FestivArt 0 Espanola Way 0 Other
Merchandise to be sold:
(Please continue on back. of Ibis page if n=58I')' and initial your work).
1 borcl>y ape 10 ",II only sucb il<:ms wbicb an: listed 00 lbelIJl!'licaIiOll.I swear that 011 informatioll is com:el and
complete. 1 hereby aIfum _ I have read 1be regulali"'" and policies os OllIlinod and agree to abide 1>)' all ",les
estlIbti$bes for the opet1llion of the marke<s. I filrtIter aelmowledg< that I am aD indcpendtllt .000000000or and take full
r.sponslbility for all acti.ities conducted dlfOUghoUl the term of tIri. permit and ba~ ",open)' damage. 1'.,,"'''''1
injury and prcdutlllobilky insuratliX' in tbe llII\Oml1 of $1.000.000 and agree to bold bonnl... and indemnify 1M
MatteI CompanY. its owners, aiC\llS and emplOY""'. and 1be City ofMiomi Beach ftO\lJ an)' and aU liability lIllSing
from ponitipatiOlland ..I.. in 1be motkl:!.
Fee:S
+ Ta.'t: $
.. Insurance: $
= TotalS
Name:
. Signature:
Date;
Approved: _.___._.__._._......_...___._.._
Claire TomluL'Thc Market Company, Joc..
Nota: Violation or t'alsl6c8.I'OIl of 011)' of the conditio", set forth itl tbis legal "Slmmt:n! will ",.ult in lbe im,nwialc
and permanent loss of permission to .ell any product at a mark", sponsored by 1M Mllfk<t On1'I''''>, Inc.
47